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Rogers v. Horel

March 27, 2009

JOHN ROGERS, PETITIONER,
v.
ROBERT HOREL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Robert J. Bryan United States District Judge

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

This matter comes before the court on petitioner's petition for writ of habeas corpus. Dkt. 1. The court has considered the relevant documents and the remainder of the file herein.

INTRODUCTION

Petitioner is a state prisoner currently incarcerated at Pelican Bay State Prison in Crescent City, California. He filed this petition for writ of habeas corpus to challenge his 2004 Sacramento County conviction. Respondent filed an answer and relevant portions of the record. Dkt. 7 and 8. Petitioner filed a traverse. Dkt. 9. A review of the record shows that the claims do not warrant habeas relief. Accordingly, the petition should be denied and the case dismissed with prejudice.

PROCEDURAL AND FACTUAL HISTORY

Petitioner pleaded no contest to conspiracy to transport cocaine in violation of California Penal Code § 182 (a)(1); and California Health & Safety Code § 11352(b). Dkt. 8, Reporter's Transcript on Appeal, Vol. II of II, at 376-78. Petitioner admitted that he was substantially involved in the conspiracy and that the cocaine exceeded 20 kilograms, pursuant to California Health & Safety Code § 11370.4(a)(4).

Reporter's Transcript on Appeal, Vol. II of II, at 386, 389-90. Petitioner also admitted having served two prior prison terms in February 1994 and May 1996, pursuant to California Penal Code § 667.5(b). Reporter's Transcript on Appeal, Vol. II of II, at 386-387.

On June 21, 2004, the Sacramento County Superior Court sentenced petitioner to a determinate term of twenty years in state prison.

On October 19, 2005, the California Court of Appeal, Third Appellate District, affirmed the judgment, with modifications regarding credit for custody and good conduct credit, restitution, and date of a prior conviction. See People v. Andrade and Rogers, 2005WL 2660403 (Cal.App. 3 Dist.). Petitioner did not file a petition for review in the California Supreme Court.

On December 11, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. In that petition, he raised the issues that he now presents in this habeas corpus petition. On May 16, 2007, the California Supreme Court denied the petition.

On July 2, 2007, petitioner filed this petition for writ of habeas corpus. Dkt. 1. The court has carefully reviewed the entire record in this case.

CLAIMS

Petitioner raises seven claims in his petition, which are quoted as follows:

1. The prosecution failed to meet the burden that the warrantless search and seizure, of the petitioner, was reasonable under the Fourth Amend.

2. The initial detention of the petitioner was 'unreasonable' under the Fourth and Fourteenth Amendment.

3. The detention of the petitioner exceeded the permissible scope under the law.

4. The detention of the petitioner was a de facto arrest[.]

5. There was no probable cause to believe that the petitioner was involved in any criminal activity.

6. Det. Kolbs GPS based testimony was inadmissible and prejudicial[.]

7. California lacks the subject matter jurisdiction to prosecute a crime that occurred outside of its jurisdiction.

Docket 1.

EXHAUSTION

Before claims may be raised in a federal habeas corpus petition, state remedies must be exhausted; or an applicant must show there is either an absence of available state corrective process or that circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1); see also, Rose v. Lundy, 455 U.S. 509 (1982). A claim has been exhausted once it has been fairly presented to the state's highest court and the court has had the opportunity to rule on the merits of the claim. See O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733-34 (1999); Picard v. Connor, 404 U.S. 270, 275-276 (1971); Batchelor v. Cupp, 693 F.2d 859, 862(9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983).

A petitioner must present the claims to the state's highest court based upon the same federal legal theory and factual basis as the claims are subsequently asserted in the habeas petition. Hudson v. Rushen, 686 F.2d 826, 829-830 (9th Cir. 1982), cert denied 461 U.S. 916 (1983); Schiers v. California, 333 F.2d 173, 176 (9th Cir. 1964). Specifically, a petitioner must apprise the state courts that an alleged error is not only a violation of state law, but a violation of the Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Vague references to broad constitutional principles such as due process, equal protection, or a fair trail do not satisfy the exhaustion requirement. Gray v. Netherland, 518 U.S. 152, 162 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 120 ...


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